M v L and Others

JudgeMs Justice M. Clark
Judgment Date12 October 2012
Neutral Citation[2012] IEHC 485
CourtHigh Court
Docket NumberRecord No. 2011 / 853 J.R.
Date12 October 2012

[2012] IEHC 485


Record No. 2011 / 853 J.R.

Record No. 2011 / 856 J.R

J. C. M. [DRC]
M. L. [DRC]

Judicial Review - Asylum - Deportation - Application for subsidiary protection refused - Country of origin information - Risk of serious harm - Protection from serious harm - Credibility - Procedural unfairness

Facts: The applicants were originally from the Democratic Republic of Congo. They were unconnected matters but relied on the same essential argument hence the reason they were decided together. They both applied for asylum upon entering the country but the applications before the Refugee Applications Commissioner and the Refugee Appeals Tribunal were rejected. The applicants then made a claim for subsidiary protection on the basis that there was a risk of serious harm if they were returned to the country of origin but this was also rejected. Leave for judicial review was subsequently sought challenging the validity of that decision.

In the applicants' applications for subsidiary protection, they clarified that the serious harm they would face would be imprisonment and death as a result of involvement in political activity in opposition to the governing establishment in the case of Mr M and accusations made by a colonel in the Democratic Republic of Congo that Mr L had a role in the death of the colonel's wife when she was a patient at the health centre Mr L worked at. They further pointed out that the country of origin information for the Democratic Republic of Congo was overwhelmingly negative. The applications were rejected as it was decided that the applicants' version of events were implausible and as such, the negative country of origin information could not assist the application on its own.

The applicants' sought leave to apply for judicial review. They contended that the procedure used in the assessment for subsidiary protection was unfair and in breach of natural justice. They also contended that judicial review was ineffective as a remedy as new material can not be considered. Further, they averred that whilst a judicial review process was ongoing, they should have an automatic right to stay in the country without having to apply for an injunction to stay a deportation order in the interim i.e. automatic suspensive relief.

Held by Mac Clark J that it had been well established that judicial review was an effective remedy that allowed for the protection of fundamental rights. If the applicants' had information that had only come to light, there was an opportunity for an applicant to seek a remedy in respect of that as well as an order for certiorari to quash the decision. In terms of the argument for automatic suspensive relief, this was rejected on the basis that this would encourage applicants to make an application for judicial review without merit, simply to prolong their deportation. It was therefore reasonable to expect an applicant to make an application seeking injunctive relief.

In terms of the argument that the assessment of the subsidiary protection application was unfair, it was held that there was merit in the argument that it was unfair that asylum and subsidiary protection applications were not considered at the same time and it transpired that the Republic of Ireland was the only EU state not to do so. The directions given in the letter offered by the Minister following a refusal at the Refugee Appeal Tribunal stage were considered questionable in law. Leave was therefore granted to allow the applicants to pursue their argument on this ground.

Application for leave granted.

Ms Justice M. Clark
JUDGMENT OF MS JUSTICE M. CLARK, delivered on the 12th day of October 2012.

The applicants, who both come from Kinshasa in the Democratic Republic of the Congo (DRC), seek leave to apply for orders of certiorari by way of judicial review, quashing the decisions of the Minister for Justice and Equality (“the Minister”) refusing to grant them subsidiary protection and making deportation orders against each of them.


While these two cases are otherwise unconnected, one judgment will be given in these leave applications as the applicants submitted a set of identical legal submissions in each case entitled “Procedural Position” and are represented by the same legal teams. Indeed the same submissions have been relied upon by the same solicitors in a large number of other applications pending before this Court. The leave applications were heard before this Court on the 14th and 28th of February and on the 7th of March 2012. Ms. Sunniva McDonagh S.C. (with her Paul O’Shea B.L.) appeared for the applicants in both matters. Mr. David Conlan Smith B.L. appeared for the respondents in both matters.

Mr. M – Facts


Mr. M says that he arrived in the State on 6th February 2009 aged 20 and claimed asylum based on his assertion that he was a member of the Save the Congo / Armée de Victoire and had for several years been the driver for the wife of Pastor Ferdinand Kutino, the leader of the movement. Mr. M claimed that he was arrested at a demonstration organised to protest at the detention of Pastor Kutino and was held for 11 months without charge. He said that during that time he was beaten, raped and threatened by DRC State forces but he was ultimately released by a Colonel on the basis that he agreed to administer supplied poison to the Pastor’s wife. He was offered $10,000 for this task; $3,000 as a down payment with the rest to follow on completion. Upon his release, he went to the home of the Pastor’s wife but found that he was unable for the task and was advised by a friend to flee the DRC. Using the partial payment, he purchased a passage out of the DRC and thus preserved his life which was under threat from the Colonel who had said he would kill him if he did not carry out his mission.


The Refugee Applications Commissioner found that Mr. M’s application was manifestly ill-founded and he was therefore confined to a documents-based appeal before the Refugee Appeals Tribunal. The Commissioner relied on several negative credibility findings including Mr. M’s slim knowledge of major events relating to Pastor Kutino, and also on information from the UK Border Agency indicated that his fingerprints were on a visa application to visit the UK in 2007 with different personal details. On 5th October 2010 the Refugee Appeals Tribunal affirmed the Commissioner’s negative recommendation and Mr. M was advised of that decision. He did not challenge the Tribunal decision by way of judicial review. Thereafter, by a standard form letter, the Minister informed Mr. M that his claim for refugee status had been refused. The letter continued:

While your application was being decided, you were allowed to stay in the state temporarily. That entitlement has now expired. The Minister now proposes to make a deportation order for you, under Section 3 of the Immigration Act, 1999, as amended.” (Emphasis in original).


The letter went on to outline Mr. M’s options. The first option was to leave the State before the Minister decided on a deportation order; the second was to consent to the deportation order; while the third option (which is relevant to this challenge) was to apply for subsidiary protection and / or make representations as to why he ought to be permitted to remain temporarily in the State. The wording of that third option is important. The relevant portion of the “three options” letter reads in full:-

As a person whose application for asylum has been refused, you may make an application for ‘subsidiary protection’ to the Minister. I enclose an information leaflet on applications for subsidiary protection.

You may also make representations to the Minister, setting out reasons as to why you should be allowed to remain temporarily in the State (Section 3(3) (b) of the Immigration Act, 1999.

You can apply for subsidiary protection and /or make representations to remain temporarily in the State on the form CP/01 or in a similar format. Please note that the completed form CP/01 must be signed by you personally or, in the case of a minor, by a parent or guardian.

You can attach any additional letters or documents from other people in support of your application when you fill in the form. Please contact us immediately if any of the facts you have stated in your application change after you submit it.

If you choose this option, it is very important that you understand the following:

(a) This is the order in which your case will be decided:

• the Minister will make a decision on your eligibility for subsidiary protection first. If your application for subsidiary protection is successful, you will be allowed to remain in the State for three years (this will be reviewed at the end of three years). If this happens, it will not be necessary for your representations to remain temporarily in the State to be considered.

• If your application is not successful or you have not made an application for subsidiary protection, the Minister will decide on your representations to remain temporarily in the State. If the Minister decides that you may remain temporarily in the State this will be reviewed at the end of one year.

• If the Minister decides that you should not be allowed to remain in the State, you will be made the subject of a deportation order. You will no longer have the option of leaving the State voluntarily without a deportation order.

(b) Your application for subsidiary protection and / or representations to remain temporarily in the State is not an appeal against the refusal of refugee status.

(c) If you present information in your application for subsidiary protection or representations to remain temporarily in the State that contradicts claims you made in your...

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